EX-4 4 ex4-3.htm EX. 4.3 - REMARKETING AGREEMENT REMARKETING AGREEMENT
Exhibit 4.3
REMARKETING AGREEMENT, dated as of June 14, 2004 (the "Remarketing Agreement"), by and among Great Plains Energy Incorporated, a Missouri corporation (the "Company"), BNY Midwest Trust Company, not individually but solely as Purchase Contract Agent and as attorney-in-fact of the holders of Purchase Contracts, and Xxxxxxx Xxxxx & Co., Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent").
Section 2. Appointment and Obligations of Remarketing Agent; Remarketing.
In connection with any remarketing contemplated hereby, the Remarketing Agent will enter into a Supplemental Remarketing Agreement (the "Supplemental Remarketing Agreement") with the Company and the Purchase Contract Agent, which shall either be (i) substantially in the form attached hereto as Exhibit A (with such changes as the Company and the Remarketing Agent may agree upon, it being understood that changes may be necessary in the representations, warranties, covenants and other provisions of the Supplemental Remarketing Agreement due to changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is not the sole remarketing agent, and with such further changes therein as the Remarketing Agent may reasonably request) or (ii) in such other form as the Remarketing Agent may reasonably request, subject to the approval of the Company (such approval not to be unreasonably withheld). Notwithstanding anything herein to the contrary, Xxxxxxx Xxxxx shall not be obligated to act as Remarketing Agent hereunder unless the Supplemental Remarketing Agreement is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The Company agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days' written notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agent.
(b) Pursuant to this Agreement and the corresponding Supplemental Remarketing Agreement, the Remarketing Agent, either as sole remarketing agent or as representative of a group of remarketing agents appointed as aforesaid, will agree, subject to the terms and conditions set forth herein and therein, to use its reasonable efforts to remarket, on each Remarketing Date during each Three-Day Remarketing Period during the Period for Early Remarketing and on each Remarketing Date during the Final Three-Day Remarketing Period, in each case in accordance with the provisions of the Debt Securities and the Indenture, until the Debt Securities have been successfully remarketed on a Remarketing Date, the Debt Securities that the Collateral Agent or the Custodial Agent shall have notified the Remarketing Agent have been tendered for, or otherwise are to be included in, the remarketing, at a price per $1,000 principal amount of Debt Securities such that the aggregate price at which such Debt Securities are being remarketed will equal at least (i) if the related Reset Date is not the Purchase Contract Settlement Date, the Remarketing Value, or (ii) if the related Reset Date is the Purchase Contract Settlement Date, the Contract Settlement Value. Notwithstanding the preceding sentence, the Remarketing Agent shall not remarket any Debt Securities for a price less than the price (the "Minimum Price") necessary for the aggregate principal amount of the Debt Securities being remarketed to have an aggregate price (i) if the proposed Reset Date is not the Purchase Contract Settlement Date, equal to 100% of the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Debt Securities Purchase Price (as defined herein), or (ii) if the proposed Reset Date is the Purchase Contract Settlement Date, equal to 100% of the aggregate principal amount of such Debt Securities. The Remarketing Agent shall not be obligated to remarket any Debt Securities if a condition precedent set forth herein or in any Supplemental Remarketing Agreement to such remarketing is not fulfilled or if the remarketing of such Debt Securities would violate applicable law.
The term "Separate Debt Securities Purchase Price" means, on any date of determination, the aggregate principal amount of Separate Debt Securities to be remarketed multiplied by a fraction, the numerator of which is the Remarketing Treasury Portfolio Purchase Price and the denominator of which is the aggregate principal amount of the Pledged Debt Securities to be remarketed.
Upon a successful remarketing, after deducting the fee specified in Section 3 below, the proceeds of remarketing shall promptly be paid by the Remarketing Agent to the Collateral Agent and the Custodial Agent who will apply such funds in accordance with Section 4.6 and 6.3 of the Pledge Agreement and Section 4.3 and 5.4 of the Purchase Contract Agreement (each of which Sections are incorporated herein by reference). In the event all remarketing attempts during a Three-Day Remarketing Period are unsuccessful, the Remarketing Agent shall return, no later than the Business Day immediately following the end of such Three-Day Remarketing Period, the Pledged Debt Securities to the Collateral Agent and the Separate Debt Securities delivered for remarketing to the Custodial Agent for return to the holders of such Separate Debt Securities. For the purposes of this Agreement and each Supplemental Remarketing Agreement, an unsuccessful remarketing shall mean the failure of any condition set forth in Section 7 hereof to be satisfied with respect to a particular Remarketing Date, resulting in a remarketing having failed on such Remarketing Date.
(c) The Remarketing Agent shall not have any obligation whatsoever to purchase any Debt Securities, whether in connection with a remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debt Securities for remarketing or to otherwise expend or risk its own funds or incur or be exposed to financial liability in the performance of its duties under this Agreement or the Supplemental Remarketing Agreement. The Company shall not be obligated in any case to provide funds to make payment upon tender of Debt Securities for remarketing.
(d) Subject to the conditions set forth in this Agreement, the Remarketing Agent agrees to use its reasonable efforts to remarket, in whole but not in part, the Pledged Debt Securities and the Separate Debt Securities that are delivered to it for remarketing by the Collateral Agent and the Custodial Agent no later than 10:00 a.m., New York City time, on the Business Day prior to the commencement of each Three-Day Remarketing Period.
(a) Upon a successful remarketing of the Debt Securities, the Remarketing Agent is entitled to a remarketing fee (the "Remarketing Fee") (i) equal to 25 basis points (0.25%) of (A) if the Reset Date is not the Purchase Contract Settlement Date and if the remarketed Debt Securities mature on February 16, 2009, the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Debt Securities Purchase Price or (B) if the Reset Date is the Purchase Contract Settlement Date and if the remarketed Debt Securities mature on February 16, 2009, the aggregate principal amount of the remarketed Debt Securities, or (ii) as established by mutual agreement between the Company and the Remarketing Agent, if the maturity date of the remarketed Debt Securities is, in connection with the remarketing and in accordance with the provisions of the Debt Securities, extended to a date after February 16, 2009 (which shall not be more than 10 years from the Reset Date).
The Remarketing Agent may deduct the Remarketing Fee from the proceeds of the successful remarketing to be remitted to the Collateral Agent and the Custodial Agent, provided, however, that under no circumstances may the Remarketing Agent deduct an amount greater than the excess of such proceeds over the Minimum Price. Any resulting shortfall in the recovery of the Remarketing Fee shall by payable by the Company on the Reset Date in immediately available funds or, upon the instructions of the Remarketing Agent, by certified or official bank check or checks or by wire transfer.
(b) In connection with any attempted remarketing pursuant to this Agreement, the Company shall pay all expenses in connection therewith, including without limitation, any and all (i) registration and filing fees, (ii) fees and expenses incurred in connection with the compliance with state securities or blue sky laws and compliance with the rules and regulations of the National Association of Securities Dealers, Inc., (iii) expenses identified in clause (iv) of Section 6(a) and clause (iv) of Section 6(b), (iv) fees and disbursements of counsel to the Company and of the independent public accountants of the Company, (v) expenses of the Remarketing Agent (including fees and expenses of counsel to the Remarketing Agent) and (vi) fees and expenses of other agents or any trustees.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace Xxxxxxx Xxxxx as the Remarketing Agent hereunder by giving notice prior to 3:00 p.m., New York City time, on the eleventh Business Day immediately prior to the first Remarketing Date of any Three-Day Remarketing Period; provided that, if the Company shall have selected a Three-Day Remarketing Period and none of the remarketings during such Three-Day Remarketing Period shall have been successful, the Company may, subject to the foregoing, provide Xxxxxxx Xxxxx with such notice on and after the Business Day following the last Remarketing Date during such Three-Day Remarketing Period. Any such replacement shall become effective upon the Company's appointment of a successor to perform the services that would otherwise be performed hereunder by the Remarketing Agent. Upon providing such notice, the Company shall use all reasonable efforts to appoint such a successor and to enter into a remarketing agreement with such successor as soon as reasonably practicable. The Company shall notify the Purchase Contract Agent, the Collateral Agent and the Custodial Agent of the appointment of any such successor.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its duties and obligations hereunder as the Remarketing Agent by giving notice prior to 3:00 p.m., New York City time, on the eleventh Business Day immediately prior to the first Remarketing Date of any Three-Day Remarketing Period; provided that, if the Company shall have selected a Three-Day Remarketing Period and none of the remarketings during such Three-Day Remarketing Period shall have been successful, the Xxxxxxx Xxxxx may, subject to the foregoing, provide the Company with such notice on and after the Business Day following the last Remarketing Date during such Three-Day Remarketing Period. Any such resignation shall become effective upon the Company's appointment of a successor to perform the services that would otherwise be performed hereunder by the Remarketing Agent. Upon receiving notice from the Remarketing Agent that it wishes to resign hereunder, the Company shall appoint such a successor and enter into a remarketing agreement with it as soon as reasonably practicable. The Company shall notify the Purchase Contract Agent, the Collateral Agent and the Custodial Agent of the appointment of any such successor.
Section 6. Registration Statement and Prospectus.
(a) In connection with the remarketing during any Three-Day Remarketing Period, if and to the extent required (in the view of counsel for either the Remarketing Agent or the Company) by applicable law, regulations or interpretations in effect at the time of such remarketing, the Company shall (i) use its reasonable efforts to have a registration statement relating to the Debt Securities effective under the Securities Act of 1933, as amended (the "1933 Act"), prior to such Three-Day Remarketing Period, (ii) if requested by the Remarketing Agent, furnish a current preliminary prospectus and, if applicable, a current preliminary prospectus supplement to be used by the Remarketing Agent in the remarketing not later than three Business Days prior to the first Remarketing Date during such Three-Day Remarketing Period (or such earlier date as the Remarketing Agent may reasonably request) and in such quantities as the Remarketing Agent may reasonably request, (iii) furnish a current final prospectus and, if applicable, a current final prospectus supplement to be used by the Remarketing Agent in the remarketing not later than the applicable Remarketing Date on which the Debt Securities are successfully remarketed in such quantities as the Remarketing Agent may reasonably request, and (iv) pay all expenses relating to the foregoing.
(b) If, in connection with any remarketing contemplated by the Agreement, it shall not be possible, in the view of counsel (which need not be an opinion) for either the Remarketing Agent or the Company, under applicable law, regulations or interpretations in effect at the time of such remarketing to register the offer and sale by the Company of the Debt Securities under the 1933 Act as otherwise contemplated by this Section 6, the Company (i) shall use its reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper and advisable to permit and effectuate the offer and sale of the Debt Securities in connection with such remarketing without registration under the 1933 Act pursuant to an exemption therefrom, if available, including the exemption afforded by Rule 144A under the rules and regulations promulgated under the 1933 Act by the Commission, (ii) if requested by the Remarketing Agent, shall furnish a current preliminary remarketing memorandum to be used by the Remarketing Agent in such remarketing not later than three Business Days prior to the first Remarketing Date during the applicable Three-Day Remarketing Period (or in either case such earlier date as the Remarketing Agent may reasonably request) and in such quantities as the Remarketing Agent may reasonably request and (iii) shall furnish a current final remarketing memorandum to be used by the Remarketing Agent in such remarketing not later than the applicable Remarketing Date on which the Debt Securities are successfully remarketed in such quantities as the Remarketing Agent may reasonably request, and (iv) shall pay all expenses relating thereto.
(c) The Company shall also use its reasonable efforts to take all such actions as may (upon advice of counsel to the Company or the Remarketing Agent) be necessary or desirable under state securities or blue sky laws in connection with any remarketing on any Remarketing Date.
Section 7. Conditions to the Remarketing Agent's Obligations. In addition to any other conditions provided in the Purchase Contract Agreement, the Pledge Agreement, the Indenture, the Debt Securities or the Supplemental Remarketing Agreement, the right of each holder of Debt Securities or Income PRIDES to have their Debt Securities remarketed (or included in a particular remarketing attempt) shall be subject to the conditions that (i) with respect to any remarketing during any Three-Day Remarketing Period, a Special Event Redemption shall not have occurred or will not occur prior to the last possible Reset Date relating to such Three-Day Remarketing Period, (ii) the Remarketing Agent is able to find a purchaser or purchasers for the Debt Securities being remarketed at the applicable Minimum Price and such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required, (iii) no prior successful remarketing of the Debt Securities shall have occurred, (iv) the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Company and the Trustee shall have performed their respective obligations in connection with the remarketing in this Agreement, the Supplemental Remarketing Agreement, the Pledge Agreement, the Purchase Contract Agreement, the Indenture or any other agreement relating to such remarketing (including, without limitation, the Purchase Contract Agent giving the Remarketing Agent notice of the aggregate principal amount of the Pledged Debt Securities and the Separate Debt Securities to be delivered for remarketing no later than 10:00 a.m., New York City time, the Business Day preceding the first Remarketing Date during a proposed Three-Day Remarketing Period and the Collateral Agent and the Custodial Agent concurrently delivering such Debt Securities to be remarketed to the Remarketing Agent as required under the Purchase Contract Agreement and the Pledge Agreement), (v) no Event of Default (as defined in the Indenture), and no event that with the passage of time or the giving of notice or both would become an Event of Default, shall be continuing, (vi) the accuracy of the representations and warranties of the Company included and incorporated by reference in this Agreement and the Supplemental Remarketing Agreement or in certificates of any officer of the Company delivered pursuant to the provisions included or incorporated by reference in this Agreement or the Supplemental Remarketing Agreement, (vii) the performance by the Company of its covenants and other obligations included and incorporated by reference in this Agreement and the Supplemental Remarketing Agreement, (viii) the satisfaction of the other conditions set forth and incorporated by reference in this Agreement and the Supplemental Remarketing Agreement, and (ix) this Agreement and any applicable Supplemental Remarketing Agreement have not terminated.
(b) If at any time during the term of this Agreement, any Event of Default (as defined therein) under the Indenture, or event that with the passage of time or the giving of notice or both would become an Event of Default under the Indenture, has occurred and is continuing, then the obligations and duties of the Remarketing Agent under this Agreement shall be suspended until such default or event has been cured. The Company will promptly notify the Remarketing Agent of such Events of Default and events known to it and will cause the Trustee to give the Remarketing Agent notice of all such Events of Default and events of which the Trustee is aware.
Section 10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Remarketing Agent and each person, if any, who controls the Remarketing Agent within the meaning of either Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") (the Remarketing Agent and each such person or entity being an "Agent Indemnified Party"), as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, related to, arising out of, or based on (A) the failure to have an effective Registration Statement (as defined in the Supplemental Remarketing Agreement) under the 1933 Act relating to the Debt Securities, as the case may be, if required, or the failure to satisfy the prospectus delivery requirements of the 1933 Act because the Company failed to provide the Remarketing Agent with a Prospectus (as defined in the Supplemental Remarketing Agreement) for delivery, or (B) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or (C) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (D) any untrue statement or alleged untrue statement of a material fact contained in any preliminary remarketing memorandum or any final remarketing memorandum (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (E) any untrue statement or alleged untrue statement of a material fact contained in any other documents (including, without limitation, any documents incorporated or deemed to be incorporated by reference in any such documents) provided by the Company for use in connection with the remarketing of the Debt Securities or any of the transactions related thereto, or (F) any failure by the Company to make or consummate the remarketing of the Debt Securities or the withdrawal, recession, termination, amendment or extension of the terms of such remarketing, or (G) any failure on the part of the Company to comply, or any breach by the Company of, any of the provisions (including without limitation any representations or warranties) included or incorporated by reference in this Agreement, the Supplemental Remarketing Agreement, the Purchase Contract Agreement, the Income PRIDES, the Growth PRIDES, the Pledge Agreement, the Indenture or the Debt Securities (collectively, the "Operative Documents"), or (H) the remarketing of the Debt Securities or any other transaction contemplated by any of the Operative Documents, or the engagement of the Remarketing Agent pursuant to, or the performance by the Remarketing Agent of the services contemplated by, this Agreement or the Supplemental Remarketing Agreement, whether or not any remarketing of the Debt Securities, or the reset of the interest rate on, or modification of the maturity date or scheduled interest payment dates of, the Debt Securities, as contemplated herein actually occur;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever related to, arising out of or based on any matter described in (i) above, if such settlement is effected with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Remarketing Agent), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever related to, arising out of or based on any matter described in (i) above to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)(B), (i)(C), (i)(D) or (i)(E) to the extent any such loss, liability, claim, damage or expense arises out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Remarketing Agent expressly for use in the Registration Statement (or any amendment thereto), any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or any preliminary or final remarketing memorandum (or any amendment or supplement thereto) or any other documents used in connection with remarketing of the Debt Securities, as the case may be; provided, further, that the Company shall not be liable under clause (i)(F) or (i)(H) to the extent that such loss, claim, damage, liability or expense has, by final judicial determination, resulted from the willful misconduct, bad faith or gross negligence of the Remarketing Agent.
(b) The Remarketing Agent agrees to indemnify and hold harmless the Company, its directors, each of its officers who sign the Registration Statement, and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act (the "Company Indemnified Parties") to the same extent as the foregoing indemnity from the Company to the Agent Indemnified Parties, but only with reference to clause (i)(B), (i)(C), (i)(D) and (i)(E) of Section 10(a) with respect to information relating to the Remarketing Agent furnished to the Company in writing by such Remarketing Agent expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto, any preliminary remarketing memorandum, final remarketing memorandum or amendments or supplements thereto or any other documents used in connection with the remarketing of the Debt Securities, as the case may be.
(c) Each party seeking indemnification hereunder (an "Indemnified Party") shall give notice as promptly as reasonably possible to each party from whom indemnification is sought (an "Indemnifying Party") of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 10(a) above, counsel to the Indemnified Parties shall be selected by the Remarketing Agent, and in the case of parties indemnified pursuant to Section 10(b) above, counsel to the Indemnified Parties shall be selected by the Company. An Indemnifying Party may participate at its own expense in the defense of such action; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of the Indemnified Party) also be counsel to the Indemnified Party. In no event shall the Indemnifying Parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No Indemnifying Party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 10(a) or (b) hereof (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(d) If at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel, such Indemnifying Party agrees that it shall be liable for any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in Section 10(a) or (b) hereof is unavailable or insufficient to hold harmless an Indemnified Party, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of the losses, claims, damages or liabilities referred to in Section 10(a) or (b) above, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, and the Remarketing Agent on the other, from the remarketing of the Debt Securities contemplated hereby or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand, and the Remarketing Agent on the other, in connection with the statements, omissions or other matters which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand, and the Remarketing Agent on the other, shall be deemed to be in the same respective proportions as the aggregate principal amount of the Debt Securities which are or are to be remarketed bears to the aggregate fees actually received by the Remarketing Agent under Section 3 hereof. The relative fault (i) in the case of an untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, shall be determined by reference to, among other things, whether such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Remarketing Agent on the other hand and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission and (ii) in the case of any other action or omission shall be determined by reference to, among other things, whether such action or omission was taken or omitted to be taken by the Company on the one hand, or by the Remarketing Agent, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to prevent or correct such action or omission. The Company and the Remarketing Agent agree that it would not be just and equitable if contribution pursuant to this Section 10(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(e). The amount paid by an Indemnified Party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this Section 10(e) shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, preparing or defending any action or claim which is the subject of this Section 10(e). Notwithstanding the provisions of this Section 10(e), the Remarketing Agent shall not be required to contribute any amount which, in the aggregate, exceeds the aggregate fees received by it under Section 3 of this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e), each person, if any, who controls the Remarketing Agent within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Remarketing Agent and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
(f) Anything herein or in the Supplemental Remarketing Agreement to the contrary notwithstanding, the provisions of this Section 10, and the rights of the Remarketing Agent and the other Indemnified Parties hereunder, shall be in addition to, and not in limitation of, any rights or benefits (including, without limitation, rights to indemnification or contribution) which the Remarketing Agent or any other Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
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GREAT PLAINS ENERGY INCORPORATED | |
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By: Name: Title: |
/s/Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx Senior Vice President-Finance, Chief Financial Officer and Treasurer |
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CONFIRMED AND ACCEPTED: XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/Xxxx Xxxxxx Authorized Signatory BNY MIDWEST TRUST COMPANY, not individually but solely as Purchase Contract Agent and as attorney-in-fact for the holders of the Purchase Contracts By: /s/Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Assistant Vice President |
Exhibit A to Remarketing Agreement
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
Supplemental Remarketing Agreement dated _____________, ____ among Great Plains Energy Incorporated, a Missouri corporation (the "Company"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"), and BNY Midwest Trust Company, as Purchase Contract Agent and attorney-in-fact for the Holders of the Purchase Contracts (as such terms are defined in the Purchase Contract Agreement referred to in Schedule I hereto).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting Agreement (other than Section 2, Section 3, Section 4, Section 5, Section 9 and Section 10 thereof) are incorporated herein by reference, mutatis mutandis, and the Company hereby makes the representations and warranties, and agrees to comply with the covenants and obligations, set forth in the provisions of the Underwriting Agreement incorporated by reference herein, as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement incorporated herein, for the purposes hereof, (i) all references therein to the "Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing Agent and any additional remarketing agents designated pursuant to Section 2 of the Remarketing Agreement; (ii) all references therein to the "Securities", "FELINE PRIDES" or "Initial Securities" shall be deemed to refer to the Securities as defined herein; (iii) all references therein to the "Closing Date" shall be deemed to refer to the Remarketing Closing Date specified in Schedule I hereto; (iv) all references therein to the "Registration Statement" [, the "preliminary prospectus"] or the "Final Prospectus" shall be deemed to refer to the Registration Statement[, the preliminary prospectus] and the Prospectus, respectively, as defined herein; (v) all references therein to this "Agreement," the "Purchase Agreement," the "Underwriting Agreement," "hereof," "herein" and all references of similar import, shall be deemed to mean and refer to this Supplemental Remarketing Agreement; (vi) all references therein to "the date hereof," "the date of this Agreement" and all similar references shall be deemed to refer to the date of this Supplemental Remarketing Agreement; (vii) all references therein to any "settlement date" shall be disregarded; and (viii) [other changes, including changes relating to the offer and sale of the Securities in connection with the Remarketing without registration under the 1933 Act in reliance upon an exemption therefrom (including the exemption afforded by Rule 144A)].]
5. Delivery and Payment. In the event of a successful remarketing, delivery of payment for Securities by the purchasers thereof identified by the Remarketing Agent and payment of the Remarketing Fee shall be made on the Remarketing Closing Date at the location and time specified in Schedule I hereto (or such later date not later than five Business Days after such date as the Remarketing Agent shall designate), which date and time may be postponed by agreement between the Remarketing Agent and the Company. Delivery of the remarketed Securities and payment of the Remarketing Fee shall be made to the Remarketing Agent against payment by the respective purchasers of the remarketed Securities of the consideration therefor as specified herein, which consideration shall be paid to the Collateral Agent and Custodial Agent for the account of the persons entitled thereto by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in immediately available funds or in immediately available funds by wire transfer to an account or accounts designated by the Collateral Agent and the Custodial Agent. Any amount of the Remarketing Fee that cannot be deducted from the funds received from such purchasers shall be payable by the Company on the Remarketing Closing Date in immediately available funds or, upon the instructions of the Remarketing Agent, by certified or official bank check or checks or by wire transfer.
With respect to Securities not represented by a Global Security held by or on behalf of The Depository Trust Company, certificates for the Securities shall be registered in such names and denominations as the Remarketing Agent may request not less than one full Business Day in advance of the Remarketing Closing Date, and the Company, the Collateral Agent, the Custodial Agent and the registered holder or holders thereof agree to have such certificates available for inspection, packaging and checking by the Remarketing Agent in New York, New York not later than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Remarketing Underwriters.
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Very truly yours, GREAT PLAINS ENERGY INCORPORATED By: _______________________ Name: Title: |
CONFIRMED AND ACCEPTED: XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: __________________________ Authorized Signatory
BNY MIDWEST TRUST COMPANY, not individually but solely as Purchase Contract Agent and as attorney-in-fact for the holders of the Purchase Contracts By: __________________________ Name: Title:
Schedule I to Supplemental Remarketing Agreement
Securities subject to the remarketing: Senior Notes initially due 2009 of the Company (the "Securities").
Purchase Contract Agreement, dated as of June 14, 2004 (the "Purchase Contract Agreement"), by and between Great Plains Energy Incorporated, a Missouri corporation, and BNY Midwest Trust Company.
Pledge Agreement, dated as of June 14, 2004 (the "Pledge Agreement"), by and among Great Plains Energy Incorporated, a Missouri corporation, BNY Midwest Trust Company and BNY Midwest Trust Company.
Indenture dated as of June 1, 2004 (the "Base Indenture"), by and between Great Plains Energy Incorporated, a Missouri corporation, and BNY Midwest Trust Company, as supplemented by the First Supplemental Indenture, establishing the Securities.
Aggregate Principal Amount of Securities: $ ____________ .
Underwriting Agreement, dated June 8, 2004 (the "Underwriting Agreement"), between Great Plains Energy Incorporated and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Three-Day Remarketing Period: __________ ___, _____ [("Day 1")], __________ ___, _____ [("Day 2")] and __________ ___, _____ [("Day 3")] .
Remarketing Closing Date, Time and Location: [__________ ___, _____ (if a successful remarketing occurs on Day 1), __________ ___, _____ (if a successful remarketing occurs on Day 2) or __________ ___, _____ (if a successful remarketing occurs on Day 3)] [February 16, 2007].